Courtney Hillebrecht. 2021. Saving the international justice regime. Beyond backlash against international courts (Cambridge: Cambridge University Press)

The last decade has seen a backlash against international courts. Several countries withdrew from international human rights and criminal courts while the rhetoric around human rights has also become more negative. The Philippines’ president Duterte, for example, referred to international justice as “bullshit.” Even some courts and governments in Western liberal democracies have become openly critical. Courtney Hillebrecht’s latest book thus comes at the right moment. She answers three topical and highly relevant questions: What is backlash and what form does it take? Why do states and elites engage in backlash against international courts? What can stakeholders and supporters of international justice do to meet these challenges? Hillebrecht can be praised for answering these questions in a convincing and crystal-clear way.

Hillebrecht makes three valuable contributions to the existing literature. First, she provides a new definition and typology of backlash. She highlights three defining features of backlash: it is a sustained effort to undermine the roots of internationals courts’ authority, accompanied by concrete action. This definition excludes mere rhetorical rejections, pushbacks, or resistance, and Hillebrecht makes clear that backlash is not “normatively ‘bad behavior.’” Hillebrecht rightly makes the point that disagreement with international courts is an inherent feature of the working of international law.

A second contribution is the clear and schematic presentation of an interdisciplinary, multipronged theoretical framework. In chapter 2, Hillebrecht attributes backlash to four main factors: the dependence of courts on member states’ material, procedural normative support; fundamental normative debates about using international justice; domestic distributional consequences in terms of creating winners and losers and empowering the opposition; and states’ and elites’ likelihood of engaging in future violence and repression. In the substantive chapters 3–6, she discusses four manifestations of backlash on the basis of nine different case studies: (1) withdrawals from international human rights and criminal tribunals; (2) the establishment of alternative or substitute justice mechanisms; (3) the imposition of financial and bureaucratic restrictions on courts; (4) and challenges to court doctrines.

The third contribution consists of policy recommendations as to how stakeholders and supporters can counter these challenges. Coming at the end of the book, this set of recommendations illustrates the coherence of Hillebrecht’s contribution because the recommendations are theoretically informed and well-connected to the causes and manifestations of backlash.

Even though much has been written about the backlash “phenomenon,” this book stands out in terms of the clarity of line of argumentation and its comprehensive coverage of different international and regional human rights and criminal law systems in only 177 pages. This also makes the book useful for teaching. Of course, accessibility comes at a cost, limiting what the book can do. Two limitations are particularly consequential. First, the book’s conciseness and clear line of argumentation inherently translate into a sometimes superficial or descriptive account. Second, despite broad coverage in some dimensions, the author chose to not focus on particular phenomena and manifestations of backlash that arguably merit more attention.

The first line of critique is that the book’s comprehensive and at the same time concise coverage has its side effects. For academics and practitioners who specialize in this area, the book does perhaps not contain much news or surprising findings, albeit very few readers would have expertise in all different regional and international human rights and criminal law systems covered by the book. The two introductory chapters promise more than the case studies in the subsequent substantive chapters actually deliver, while also perhaps overstating their innovativeness. Hillebrecht’s observation that the literature to date primarily consists of single case studies (p. 58) overlooks some important recent contributions (e.g., Lustig & Weiler, 2018; Gonzalez-Ocantos & Sandholtz, 2021). Hillebrecht argues that the case studies are based on “careful process tracing” to determine if and how the different drivers of backlash politics converge to drive doctrinal challenges to international courts. She notes that: “The data come from interviews with stakeholders; content analysis of thousands of newspaper articles across eight different country studies; deep engagement with policy reports and materials from the tribunals’ online archives; and legal analyses of cases and judicial concepts.” (p. 58) The (empirical) analysis of primary sources does not, however, immediately capture the reader’s attention. Hillebrecht primarily relies on secondary sources and existing research. The reliance on interviews is actually fairly limited. It is here that the book could have provided real empirical added value and new insights. Interviews with stakeholders could have potentially been a good way to reveal “true” motivations of policymakers and government officials, irrespective of obvious limitations of interviews. The bibliography mentions fourteen interviews conducted between July 2008 and 2016. Surprisingly, only one of the four substantive chapters with the case studies explicitly refer to and engage with the interviews, namely in relation to the bureaucratic and budgetary conflicts at the International Criminal Court (ICC; p. 125 and 129). It is also not clear what kind of stakeholders were interviewed: primarily officials from international courts or also—and preferably from the perspective of the three research questions—government officials?

The comprehensive coverage means that international human rights law and criminal law are grouped together. The question is whether this makes sense, aside from obvious advantages, because the two systems operate on the basis of different underlying logics. This means that important differences and nuances are easily overlooked. This is particularly problematic because the international human rights law regime discussed is regional in character whereas the ICC constitutes a single international system. One thus also wonders why the international UN human rights system is left out. No explanation is provided. The UN system is not even mentioned in the appendix with an overview of the “vast architecture of the international justice regime.” Obviously, the UN human rights system lacks true international courts and only consists of quasi-judicial treaty bodies staffed by part time experts instead of full time, independent judges (Krommendijk, 2015). Several of these bodies, nonetheless, also deal with individual complaints and render (non-binding) decisions just as regional human rights courts do. The UN system has also been confronted with manifestations of backlash that seem to fit in Hillebrecht’s framework. This includes the euphemistically termed “treaty body strengthening process” to address the challenges of the system (Krommendijk, 2020) or the establishment of the Universal Periodic Review (UPR) in the UN Human Rights Council. It would be interesting to learn from Hillebrecht’s appraisal of these developments; to what extent does the politicized UPR process constitute an alternative justice mechanism (the second manifestation of backlash) overshadowing the more independent review conducted by the treaty bodies (Carraro, 2017)?

My second line of critique is that equally (or arguably even more) relevant developments are not explicitly discussed. This relates to both the types of governments and branches of government. The book focuses on backlash originating from the political authorities of states and especially the executive from states that are not liberal democracies. As I will argue, more fundamental and worrying challenges come from liberal democracies and especially their courts.

Consider the examples Hillbrecht provides. Chapter 3 about withdrawal from international courts, for example, discusses three Latin American case studies. Two deal with clearly authoritarian countries with—in the words of Hillebrecht—“personalistic regimes.” Peru threatened to withdraw from the Inter-American Court of Human Rights (IACtHR) during the presidency of Fujimori, while Venezuela withdrew from both the Convention and the Court, as well as the Organization of American States (OAS), under Chávez and Maduro. To what extent was (the threat) of withdrawal from the IACtHR truly problematic from the perspective of the authority of the Court, especially considering that the backlash was primarily driven by country specific factors? Hillebrecht’s discussion actually shows that mainly domestic reasons account for a backlash. This is also illustrated by the considerably more optimistic third case study on Colombia. Hillebrecht gives three country-related reasons for the fact that Colombia has never withdrawn or threatened to do so, despite the fact that Colombia has been the target of many judgments and reports of the IACtHR and Inter-American Commission on Human Rights.

In my view, backlash coming from liberal democracies, “a political system marked not only by free and fair elections, but also by the rule of law, a separation of powers, and the protection of basic liberties of speech, assembly, religion, and property” (Zakaria, 1997, 22), is considerably more worrying and would have more negative repercussions for the liberal multilateral international legal order than similar actions coming from other countries. I expect that Hillebrecht would not necessarily disagree with this proposition since she points throughout the book to the important responsibility of “stakeholder or steward states” that are traditionally supportive of international courts. By focusing almost exclusively on non-liberal democracies, the book gives the impression that the backlash is largely confined to this group of states.

In addition, Hillebrecht mostly focuses on backlash originating from the political authorities of states and especially the executive. The downside of this approach is twofold: firstly, important developments are left out of the study that could have reinforced her argument with respect to the existence of a backlash and the severity of the problem. Secondly, a clear identification of the actual source of backlash within a state is important because one could argue that there are notable differences in terms of the level of severity from a more normative perspective. A backlash in parliament, primarily coming from oppositional political parties, is perhaps less problematic than contestation by the ruling government. Likewise, it is arguably more severe when the backlash comes from (independent) courts. In contrast with political authorities, courts follow the logic of law and one would expect them to closely adhere to legally binding and/or authoritative judgments of their international counterparts. It is a pity that Hillebrecht’s framework does not explicitly consider this element. She indeed discusses the role of the—dubiously functioning—Russian and Peruvian Constitutional Courts in rejecting to implement judgements of regional human rights courts, while making a short reference to the decision of the Italian Constitutional Court that European Court of Human Rights (ECtHR) judgments are not enforceable without a Constitutional ruling. The latter would have merited more attention because of the particularly negative repercussions of national courts casting doubt on the legitimacy of their international counterparts. The problem is perhaps even bigger than Hillebrecht suggests considering similar judgments of Supreme and constitutional courts in Germany, Slovenia, and the UK, determining that they are not bound to follow every decision of the ECtHR (e.g., UK Supreme Court, 2010; Breuer, 2019). Likewise, the Argentinean Supreme Court refused to implement a judgement of the IACtHR (CS Argentina, 2017). By only focusing on—arguably dubiously functioning—Constitutional Courts, like the Russian court and the Peruvian court under Fujimori, she might give the impression that the backlash coming from national courts is so far restricted to courts in non-liberal democracies. The last years have shown that even within one of most legalized, effective, and authoritative regional legal orders (the EU), national courts have not always been willing to listen to an international court, namely the Court of Justice of the European Union (e.g., German Constitutional Court, 2020 in Weiss; Danish Supreme Court, 2016 in Dansk Industri). To my mind, this legal backlash is more worrisome in the long run for the authority of the international legal order than a backlash from personalistic and neopopulist regimes of illiberal democracies. This distinction would have deserved more attention in the book.

All in all, the book deserves praise for the clarity and simplicity of the argument that runs throughout the book as a clear red line. It is well written, easy to read, and therefore accessible for a broad audience. Most of my comments are invitations to extend the theoretical framework and arguments to other manifestations of backlash (i.e., non-compliance by national courts) or other systems (i.e., the UN system).